Monday, October 31, 2016

Police pension bailouts, dreaming of Oklahoma, and other nightmarish scenarios on Halloween

A few things, while I've got you:

Lab delays spur boost in Nueces Co. personal bond use
In Corpus Christi, prosecutors have enacted a standardized policy of offering personal bonds to defendants charged in synthetic marijuana cases, mainly because of crime lab delays. The most likely reason for the shift: "The time it takes to get test results on the substances has been longer than the maximum allowed sentences. Possessing synthetic marijuana is a class B misdemeanor punishable by up to six months in jail. Test results from the Department of Public Safety labs have been taking about nine months to a year to get back." They should keep close track of outcomes with these defendants, it will create a natural experiment to compare them with defendants convicted before they changed the policy.

With the chairmen of the House Criminal Jurisprudence and Calendars Committees both residing in Nueces, perhaps this news will place more pressure on the Lege to either adequately fund crime labs or adjust sentences to reduce pressure on them. Honestly, the whole crime lab system - at DPS and otherwise - is at the breaking point. Numerous disciplines have come under attack as fundamentally non-scientific, and even disciplines like toxicology with a more sound scientific basis are overwhelmed by volume and undercut by attempts to perform them on the cheap, as evidenced by the following item.

News flash: Bad field tests cause false drug convictions (and not just in Houston)
ProPublica has a great piece on the use of scientifically flawed "field tests" for drugs used in Las Vegas, NV, following up on important NY Times coverage earlier this year of the use of the same type of $2 tests in Houston. Both are must-read pieces of journalism for anyone interested in the topic. In Houston, this topic plays directly into debates in the DA's race over racial disparities in drug enforcement, as 59 percent of defendants falsely accused and convicted based on false positive from cheap field tests were black. They also pump up the state's "exoneration" numbers, ensuring that Texas will lead the nation in disproven false convictions for years to come just based on what's come out of Houston alone. The thing is, we know that EVERYONE who uses these field tests likely accuse innocent people, not just those in Houston or Vegas. These stories show us the tip of a much larger iceberg.

Requests for police pension bailouts pit cops vs. anti-tax conservatives
Increasingly it's clear that police pensions are a latent but fully primed flash point between anti-taxation Republicans in the Legislature, more liberal city councils, and local police unions. In Dallas, the pension us oversubscribed with too-generous benefits, has engaged in a series of flawed, risky real estate deals, and is losing money hand over fist. The fund in Houston isn't much better. In those and ten other Texas cities, local control of police and fire pensions has been wrested away by the Legislature and vested into independent bodies on which cities have a voice but unions (and the Lege) have ultimate control. Lately, the Laura and John Arnold Foundation's Josh McGee has been pounding away at the fundamental fiscal insolvency of these funds, mos recently in this excellent short report written with Paulina Diaz on the Dallas police and firefighters' pension. Their bottom line assessment of the crisis in Dallas: "The city’s public pension debt has doubled in less than two years due to inadequate funding, irresponsible benefit enhancements, and poor investment decisions. The total unfunded liability is now at least $4 billion—and the plans do not have enough money to pay for nearly half of the retirement benefits workers have already earned."

All these pension funds want bailouts either from local or state taxpayers, putting the police and firefighters unions directly in conflict with low-or-no-tax conservatives around the state, not just in the Tea Party wing of the GOP but also among establishment Chamber of Commerce types who abhor large tax hikes. Police and firefighters are among the last employees who receive defined benefit pensions instead of defined contributions (typically in 401ks) like most everybody else. They'll claim the sky will fall if that's changed, but the truth is, as the Arnold Foundation report ably demonstrates, the sky will fall if nothing changes. MORE: The Texas Public Policy Foundation is holding an event on public employee pensions in Austin next week.

Dreaming of Oklahoma, and other unlikely scenarios
Grits never thought the day would come when I could write this, but part of me is a little envious of Oklahoma, or I should say Oklahoma reformers. They've put drug sentencing reductions on the ballot and therefore can have a conversation about the idea's merits directly with the voters instead of filtering reform through the legislative process, with the resulting compromises, delays and special-interest interventions that inevitably entails. OTOH, Grits was doing this work in the '90s, so I can remember an era when I was quite grateful Texas didn't have initiative and referendum. The tough-on-crime crowd could and would have proposed, and voters would likely have passed, much worse stuff, even, than actually got through, except in a venue where opponents have had no way to oppose, modify, counter or coopt the details of the proposals.

So while the prospect of ballot initiatives is tempting - and while part of me wishes we could similarly test Texas voters' views on criminal justice reform more directly than just polling, which generally shows support for the main reforms presently on the table, but whose results haven't been tested by the gauntlet of special-interest attacks which face a ballot initiative of this sort - I'm still glad Texas doesn't have initiative and referendum and would oppose it here if it were seriously suggested. If I were in Oklahoma, though, right about now I'd be busting my hump to help Questions 780 and 781 pass. Good luck to them.

Piling on CCA CoreCivic
In response to federal prison contracts being rescinded and surprisingly successful divestment campaigns aimed at reducing their capital, Corrections Corporation of America, the private prison operator, has rebranded and renamed itself as CoreCivic. According to this source, "Last month, CCA fired 12 percent of its corporate workforce to deal with sharply dropping investment—largely thanks to growing pressure campaigns to divest from private prisons." Here's the company's press release. Not to pile on, but I should mention several of the private prison facilities Grits has argued should be prioritized for closure by the Texas Legislature in 2017 are CCA CoreCivic units.

Sunday, October 30, 2016

Overhyped DPS border stats debunked, again, surprising no one who's paid attention

No one should be surprised that the Department of Public Safety overstated the number of "high risk" arrests they made as part of the border surge, as AP's Paul Weber ably reported last week. "Among the 'high-threat' incidents was a trailer that unlatched from an RV and rolled into oncoming traffic, killing another driver in a town more than 150 miles from the border. Other crimes lumped in with suspected killers and human traffickers were speeding teenagers and hit-and-runs that caused no serious injuries."

A scornful Caller Times editorial noted that, "many of these arrests turned out to be for drunken driving, failure to pay child support and minor drug possession. The DPS didn't bother to differentiate user amounts from smuggler amounts in its statistics. It also considered 60 counties to be border-region, which undoubtedly would tax the imaginations of even our best and brightest middle school geography teachers." Nearly half of the "high risk"  incidents were drug possession arrests, but mostly user level amounts, not big-time traffickers. State Rep. Terry Canales rightly chided the agency's hubris, "I would say it's shocking that a person arrested with a small amount of cocaine in Odessa is used to show supposedly high-threat criminal arrests on the Texas-Mexico border."

Grits readers may recall that this isn't the first time deceptive statistics have been used to justify Texas' dubious border security spending.

From the start, DPS has used loaded, overhyped language to justify a wasteful and unnecessary $800 million per biennium border "surge." The level of criminality Col. Steve McCraw near constantly attributes to the Texas border is simply false and always has been, a politicized misrepresentation held over from the days when his former boss and patron, then-Gov. Rick Perry, hoped the Texas border buildup would elevate him to the American presidency. From about 2006 on, Perry clearly understood the rising white voter animosity against Spanish speaking immigrants that Donald Trump has lately tapped into, conflating illegal immigration with drug smuggling and Islamic terrorism in ways that this blog called out as demagoguery. But to borrow and reverse a framing from Michelle Obama, when Perry went low, Trump went lower, calling Mexicans rapists and criminals in sweeping terms that the governor's sense of decency wouldn't allow him to match. The lesson: Among that pocket of voters, the "toughest," angriest message sells the best. Truth, until now, has been a mostly optional component of so-called "border security" debates.

With an oil-price-generated budget crunch upon us, there's no cost-benefit analysis which justifies Texas spending another $800 million on this boondoggle next session. If the Lege continues the effort, it will be to pander to Trumpian fears among white voters of some phony, imminent, brown-skinned takeover. The actual crime threat in border communities, which include some of the safest cities in the state, never justified what Texas has done in the name of homeland security.

Monday, October 24, 2016

Training too late, parsing crime data, and other stories

Here are a few odds and ends which merit Grits readers attention but may not make it into independent posts:

Trooper who shot unarmed schizophrenic man should have already taken remedial training on 'Effective Decision Making'
Eva Ruth Moravec's Point of Impact series on unarmed people shot by Texas law enforcement last year has its latest installment out: the story of state trooper Timothy Keele who killed Garrett Steven McKinney, a schizophrenic man who'd been waving his arms at passing traffic by the highway. Unbeknownst to the trooper, McKinney's father had earlier dropped him off at a nearby hospital for treatment, but he never went inside. After a cordial initial encounter, McKinney allegedly sucker punched the trooper. They struggled, the trooper's arm was dislocated, and he shot the man four times.

Eva Ruth's story includes a good discussion of the training requirements at DPS related to dealing with mentally ill suspects compared to other law enforcement agencies. She also points out that new state-mandated reporting on police shootings doesn't include information on the mental health status of the victim. Speaking of training, the trooper had been "suspended without pay for one day in February 2015 and told to attend an 'Effective Decision Making' course after tracking down and scolding a 17-year-old driver who had cut him off in traffic the previous day." Trooper Keele did not take the "Effective Decision Making" course, however, until after Moravec began to inquire with the agency, with the shooting occurring during the intervening period. Could what he learned in that course have saved McKinney's life? We'll never know.

Pointing fingers over rampant use of junk science in courtroom
Judges are becoming defensive at charges they aren't performing an adequate gatekeeper function when it comes to junk forensic science. This short Pass-the-Buck essay from Kerrville District Judge Robert Barton typifies this sort of self justifying reasoning. Everyone is to blame but him for junk science in the system, even though he's the only one in the courtroom with authority to exclude it. As the Republican presidential nominee might say ... "Sad."

Surveillance matters
Grits doesn't consider racial profiling the biggest problem with widespread use of facial recognition technology by law enforcement, but you can add that to the list. One wonders if federal surveillance in Texas is increasing at the rates documented in these jurisdictions?

A call for new agency to handle capital appeals
Grits contributing writer Jennifer Laurin argued in an op ed for creating a designated appellate defender for capital cases in Texas comparable to the Office of Capital and Forensic Writs on the habeas side. Good idea. But creating a new government agency during a budget-starved session with a 2-1 Republican  majority at the Legislature seems like a heavy lift. There will be lots of other demands on the state's limited resources.

Parsing conflicting crime metrics
Soon I may have a separate post about crime rate data and its shortcomings. The two most important national sources are the Uniform Crime Reports which document "index crimes" (including most serious crimes with victims) reported to law enforcement at all levels, and the national crime victimization survey which performs in-depth public surveys with huge sample sizes and many cross-referenced questions to estimate crime victimization trends. They tend to sync up over time, but not always year to year. In September, UCR numbers came out showing murder rates are up, especially in a handful of large cities, after decades of reductions. Then this month, the new crime victimization survey shows violent crime as "flat," with all other types of crime down. "From 2014 to 2015, there was no statistically significant change in the overall violent crime rate. From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1,000 persons age 12 or older." Whichever metric you prioritize (and both have strengths and shortcomings relative to the other), crime, including violent crimes, remains at historic lows.

Indulging despair over degraded state of TX high criminal court elections

This Texas Tribune coverage of Court of Criminal Appeals races struck me as odd, focusing on drug diversion programs which are the domain of local judges and prosecutors and which the CCA rarely considers. The rest of the story focused on whether the candidates were for or against the death penalty, but in facile terms which appeared undisturbed by the actual, bleeding-edge issues surrounding capital punishment the court has faced these last few years.

It's hard to blame reporter Jonathan Silver too much. Nobody really covers the CCA as a beat anymore in the Austin press corps. So a layperson finds it difficult to nuance questions in such a way that the answers both give readers a sense of how the candidates would behave as judges but don't require them to opine on issues on which they'll later have to rule. It's a tricky line to walk. But instead of walking it, Silver's story retreated from it, asking questions which were either irrelevant to the court or too vague to matter.

It's not just reporters who don't know much about the court. Even the candidates don't really know what they're getting into. Judge Keel had a comment she thought was critical of Meyers, declaring "judges should not advocate for policy changes." I thought that was cute. It's the sort of thing trial judges think until they get on the court and discover how political the appellate process really is. Wait till she starts to show up at conference and finds that the Government Always Wins faction near constantly wants to rewrite the statutes to reach a desired outcome instead of interpret them on their face. The open question is whether Keel will join them and give Judge Keller and Co. a working majority, and this story provides nary a clue.

Regardless of the article's shortcomings, this is perhaps the most in-depth coverage of the CCA election we've seen beyond the various newspaper endorsements. Not that it matters. Voters don't know anything about these races and don't care. The odds are overwhelming that all the Republicans win.

The only outlier is the Donald Trump factor: If he continues to melt down and Republicans stay home in sufficient numbers to spur a Hillary Clinton victory in Texas, all the Ds in this race likely get elected. (What a twist it would be if Larry Meyers was the incumbent reelected instead of Mike Keasler!) But CCA elections aren't about who's the best judge or the issues facing the court. The primary season proved that. Court of Criminal Appeals races are either unassailable bastions for GOP incumbents or complete free-for-alls in which the unqualified and qualified are mixed together in a hat and then seemingly chosen at random by a blindfolded chimp.

This is fundamentally why Grits favors merging the CCA with the Texas Supreme Court. Electing judges is a bad idea, but it's even worse when candidates have no money to communicate with voters and the results are effectively random. The Texas CCA represents basically the worst-case scenario for electing instead of appointing judges. So Grits' support for a merger is more of a backup position. I'd rather not elect them at all, but if we must, combining Texas' high courts might at least improve this prostrated process.

MORE: On Twitter, Judge Elsa Alcala notes that she and Texas Supreme Court Chief Justice Nathan Hecht similarly support merging Texas' two high courts.

AND MORE: See additional, superior CCA election coverage from Peggy Fikac at the SA Express-News.

Feds to launch (voluntary) national police use-of-force database

The revelation that a quarter of Texas police shootings went unreported to the Attorney General, as required by state law, drives home the message in this LA Times headline: "There's no point in collecting information on police shootings and force if cops report inaccurate information." Even law enforcement types seem to prefer gathering data as an antidote/alternative to continually being subjected to trial by anecdote as each new damning video arises. So we're at a political moment ripe with opportunity on this front.

Stepping into the breach just months before the incumbent leadership heads out the door, DOJ recently announced it will create a national database of police use of force incidents, starting with a voluntary reporting program. This is an example of the President doing what he can in the absence of Congressional backing. (DOJ is taking over a program initially spearheaded by the white house.) At the beginning, only federal agencies and local departments that volunteer to participate will contribute data.  The initiative is structured so that, once the system is up, local departments that want to can get started. And Congress will be positioned to make reporting mandatory later on if the pilot succeeds and political winds support it.

Until then, beginning some time next year, getting local departments to participate in the federal use-of-force data program will provides a new target topic for local police accountability, #blacklivesmatter activists, etc.. Austin and Dallas participated in the pilot data program which prefaced this move, so one would expect those agencies to participate. But as for the others, unless the Legislature mandates participation - which wouldn't be a terrible idea  - it'll be up to local advocates to push departments to gather and publish use of force data.

Thursday, October 20, 2016

What error rate would justify excluding non-science-based forensics?

A recent report from the President's Council of Advisers on Science and Technology renewed concerns first raised by the National Academy of Sciences in 2009 about the lack of scientific foundation for many if not most commonly used forensics besides DNA and toxicology. Our friends at TDCAA shared on their user forum a link to the first federal District Court ruling citing the PCAST report, focused in this instance on ballistics matching.

The federal judge out of Illinois admitted ballistics evidence despite the PCAST report because he considered estimated false-positive rates relatively low. Here's the critical passage on that score:
PCAST did find one scientific study that met its requirements (in addition to a number of other studies with less predictive power as a result of their designs). That study, the “Ames  Laboratory study,” found  that toolmark analysis has a false positive rate between 1 in 66 and 1 in 46. Id. at 110. The next most reliable study, the “Miami-Dade Study” found a false positive rate between 1 in 49 and 1 in 21. Thus, the defendants’ submission places the error rate at roughly 2%. The Court finds that this is a sufficiently low error rate to weigh in favor  of  allowing  expert  testimony. See  Daubert  v.  Merrell  Dow  Pharms.,  509  U.S.  579,  594 (1993) (“the court ordinarily should consider the known or potential rate of error”); United States v. Ashburn, 88 F. Supp. 3d 239, 246 (E.D.N.Y. 2015) (finding error rates between 0.9 and 1.5% to favor admission of expert testimony); United States v. Otero, 849 F. Supp. 2d 425, 434 (D.N.J. 2012)  (error  rate  that  “hovered  around  1  to  2% ”  was  “low”  and  supported  admitting  expert testimony).  The  other  factors  remain  unchanged  from  this  Court’s  earlier  ruling  on  toolmark analysis.
Using a 2 percent error rate could understate things: The error rates from the studies he cited ranged from 1.5 to 4.8 percent, so it could be twice that high (1 in 21). Still, I'm not surprised that some judges might consider an error rate of 1.5 to 4.8 percent acceptable. And the judge is surely right that the PCAST  report provides a new basis for cross-examining experts and reduces the level of certainty about their findings which experts can portray to juries, so that's a plus.

OTOH, an erroneous ballistics match - and even though analysts can't use the word "match" any more, it's how jurors will inevitably view such testimony - will loom large for jurors and be highly prejudicial as evidence. So if you're the unlucky one in 49, one in 21, or whatever the real number is of people falsely accused by ballistics comparisons, jurors are likely to go with the so-called "expert" and the defendant is basically screwed.

Grits has estimated before that two to three percent of criminal convictions involve actually innocent defendants - not too different than the judge's error rate he considers allowable on ballistics. But that rate gets you to thousands of unexonerated people sitting in Texas prisons alone, with many more on probation, parole, and who have already completed their sentences. Given the volume of humanity which churns through the justice system, two or three percent is quite a significant number of people.

I'm curious as to Grits readers' opinions: How high a false positive rate is too high? Is forensic evidence that's 95 to 98 percent accurate good enough to secure a conviction "beyond a reasonable doubt" if that's the principle evidence against a defendant? At what error threshold should forensic evidence be excluded? Make your case in the comment section.

False convictions: Beyond atomic reforms to a societal critique

This Oct. 24 New Yorker item on an ATF agent, Peter Forcelli, who investigates wrongful convictions for the agency, included an excellent discussion of the systemic barriers to challenging, much less preventing, false convictions of innocent people:
Legally, when defendants maintain their innocence, there are two main avenues for overturning their convictions. One is to go to prosecutors with new evidence in the hope of convincing them that the conviction should be overturned. Increasingly, prosecutors’ offices have been establishing their own conviction-review units, which typically meet with defense lawyers, reinvestigate cases, and determine whether convictions should stand. There are now nearly thirty such units across the country. The Bronx D.A.’s office created one this year. ...

But post-conviction claims mostly fail, because courts usually limit appeals to those arising from procedural mistakes, and make it hard to introduce new exonerating evidence. The Supreme Court has declined to establish a right to federal review of claims based purely on innocence. In its most recent major discussion of the issue, in 1993, Chief Justice William H. Rehnquist wrote that “few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Rehnquist’s words hint at a deeper problem: the justice system has not yet learned to confront the fact that, even when there are no easily identifiable missteps, it can produce an unjust outcome. Many observers think that the best hope for remedy, therefore, is before conviction. Nancy J. King, a law professor at Vanderbilt University, told me, “The place to focus efforts for reforms for wrongful conviction is not on the back end—it’s on the front end.”

In recent years, as more defendants have been exonerated, criminologists and legal scholars have pinpointed factors that compromise investigations and trials. As a result, evidence from jailhouse informants is now viewed with more skepticism, as is any confession obtained under duress. A more sophisticated understanding of forensic science has enabled lawyers to dispute expert testimony that was once taken as gospel, on matters ranging from ballistics and fingerprints to fire investigation. A prevalent source of error is mistaken eyewitness testimony. Forcelli recently rewrote the A.T.F.’s manual on eyewitness identifications, with the aim of improving procedures in order to safeguard against error.

These are real advances, but many shaky convictions arise from a concatenation of factors. There is no manual that Forcelli could write that would stop police departments from pressuring detectives for results or prosecutors from taking on dubious cases. The more Forcelli has looked into the matter, the more he sees a broken system, with no clear remedy. “The sad part is that getting an innocent man out of jail is way, way, way harder than putting a guilty man in jail,” he said.

Academic researchers have also focused on the systemic nature of many conviction errors. Richard A. Leo, a professor of law and psychology at the University of San Francisco, told me, “The way everyone talks about it is very legal—false confessions, police coercion, eyewitness I.D.s.” He believes that the real issues are far broader, and include the adversarial structure of trials, confirmation bias, cultural notions about what indicates guilt, and a basic human tendency to attribute meaning to details that may be coincidental. “It’s not a narrow evidentiary problem,” he said. “It’s a social problem. It’s an institutional problem.” Leo said that he’d once tried to calculate the number of people involved in a wrongful conviction, from police officers and prosecutors to jurors: “It’s staggering—it’s, like, fifty people involved in every single one.”

Wednesday, October 19, 2016

On Zombie Animation and Interpreting Splits Among Texas Court of Criminal Appeals Judges

As a long time Texas Court of Criminal Appeals watcher, Grits finds it pays to pay attention when usual factions split. Regardless of the relative importance of the case, these divisions perhaps can hone our understanding of individual members' priorities, which sometimes can be masked by their alliances when the court votes in factions.

For example, one almost never sees Judges Barbara Hervey and Michael Keasler split with Presiding Judge Sharon Keller in court opinions. But the case State v. Copeland found the two of them siding against Keller and Judge Kevin Yeary to support a trial judge's suppression of prescription pain pills found in Ms. Copeland's makeup bag at a traffic stop. In fact, Hervey authored the majority opinion, while Keller authored the dissent.

In essence, the trial judge suppressed the results of the search and the state has now appealed three different times, being denied each time. The last go-round, Keller's faction succeeded in requiring the lower courts to more fully articulate their reasoning for upholding suppression, but the results came back the same. In a dissent to that ruling, Judge Larry Meyers opined that:
As demonstrated by the multiple remands of this case, it is clear the majority is just trying to find a defibrillator it can hook up to the court of appeals to shock it into finding a heartbeat to support reversal of the trial court's grant of this motion to suppress. It seems to me, however, that the coroner has already put a toe tag on this case and we are just wasting judicial resources by trying to avoid the correct conclusion that the evidence was validly suppressed. Had the roles in this case been reversed, and it was Appellee seeking review of the court of appeals' decision, Appellee's issues would have been long ago dispatched to the funeral home to be buried alive.
So what we're witnessing is Keller looking at a petty case long ago fitted for a "toe tag," to use Judge Meyers' analogy, and thinking, "Still, we could animate it as a zombie."

It's quite possible that Keller is the smartest judge on the court, and her perspicacity shows in this opinion. She tries to portray the majority decision upholding the trial court's ruling as somehow infringing on the trial judge's authority because they didn't yet again remand the case for more fact finding instead of respecting the judge's original decision. But after giving prosecutors so many bites at the apple, her fellow judges clearly had enough. Hervey's brief does not out-argue her, the other side just out-voted her.

Grits' interest in the procedural questions debated in this latest round of opinions is fairly minimal. More interesting to me is the rare split among what I've called the Government-Always-Wins (GAW) faction on the Texas Court of Criminal Appeals. Normally, Keller, Hervey, and Keasler tag team on the court. Keller is the principle intellect among that faction, Hervey provides an enthusiastic choir for the Presiding Judge to preach to, and Keasler is their attack dog, aggressively hounding the other judges into siding with the GAW group. (Judge Yeary often votes with this faction, with the notable exception of several death penalty cases, but he's not been on the court long enough for Grits to ferret out his motivations from the record.)

So it's helpful to understand when and why the GAW faction splits apart, and this case perhaps provides some insight in that regard. To me, the issues at stake were less about the procedural matters, which are largely a diversion, and instead boiled down to a simple question: Do the judges' ultimate loyalties lie with the prosecution or the judiciary?

For Keller, the Government-Always-Wins moniker pretty much means always (with the notable and interesting exception of First Amendment cases, where she is the court's most informed and progressive jurist). It's difficult to find opinions in workaday cases in which she does not mirror or amplify the prosecution's position in a case, and she writes a disproportionate number of opinions for that faction.

For Hervey and Keasler, though, they are ultimately judges first and their core loyalty lies with the judiciary, not the prosecutor's office. When push came to shove, they backed the trial judge's play because, in fact, he had authority to make it. Plus, at some point CCA judges are obliged to take into consideration judicial economy and the absurdist waste of resources expended over a few pain pills found in a makeup bag at a traffic stop five years ago.

While such an interpretation amounts to tea-leaf reading, that's the inference I'd take from this rare split.

Because so many elected judges in Texas criminal courts are either former or wannabe prosecutors in robes, usually the interests of judges and prosecutors don't diverge in the issues the court faces. Thus, the CCA has adopted policies of near total deference to trial judges' discretion on these Fourth Amendment questions, which clearly Judge Keller laments when judges act contrary to her preference.

Hervey and Keasler are being consistent and also acknowledging that there are limits to how far they'll go to maximize state power. Judge Keller's limits in that regard remain mostly unexplored.

Tuesday, October 18, 2016

Pop Quiz on Fourth Amendment and the criminalization of the normal

Pop Quiz from the Texas Seventh Court of Appeals: Which of the following are NOT an indicia of drug trafficking under Texas law?
  • Breathing.
  • Having two hands.
  • Driving a clean vehicle.
  • Looking at a peace officer.
  • Looking away from a peace officer.
  • A young person driving a newer vehicle.
  • Driving in a car with meal wrappers.
  • Driving carefully.
  • Driving on an interstate.
The answer, according to a majority opinion from the Seventh Court of Appeals written by Chief Justice Brian Quinn, is that only the first two cannot be considered suspicious behavior that justifies an investigative detention, according to Texas courts. A dissent by Justice Campbell scolded his colleagues for failing to defer to the trial judge and "assume the court made implicit findings of fact supporting its ruling that are supported by the record." But the majority opinion is quite a read, lamenting that "most anything can be considered indicia of drug trafficking to law enforcement personnel." It continued:
Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W. 3d at 896 (observing that "[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. And, sometimes, some even engage in innocent activity.") The problem comes with distinguishing between innocent conduct indictative of nothing but everyday activity and innocent conduct indicative of a crime. That is the hurdle we once again face here, and it is made difficult to clear due to the unasked questions by the State about the 'knowledge, experience, and training" of its sole witness.
The marijuana smuggling case (Ramirez-Tamayo v. State) involved a Spanish speaking driver whose detention was prolonged after he was given a warning ticket so the deputy who made the stop could have a drug dog run around the car, which resulted in discovery of marijuana. The court of appeals reversed the trial court and ordered the marijuana suppressed.

The prosecutor association's case summary writers hated the opinion but lamented that, "Based upon the shortness of the hearing at trial, and the facts of this case, the result may not change if this case is reviewed by the Court of Criminal Appeals." If I were them, I'd be more optimistic. These days, prosecutors seem to own 4 votes on the CCA in non-death cases walking in the door. Typically, the state only has to pick off one vote from the others to win.

Regardless, Justice's Quinn's open criticism of too-broad reasonable suspicion categories justifying excessive roadside detention is well deserved. The opinion insists that officers not just list otherwise legal activities and call them suspicion but explain why those legal activities suggest illegality.
In effect, the process utilized by the deputy to justify the continued detention of appellant likens to that used in profiling. Again, the articulable facts he recited as constituting reasonable suspicion are not inherently criminal. To give them significance, the deputy searched his "knowledge, training, and experience." The breadth of that "knowledge, training, and experience" was explained by no one. Nevertheless, from it he formed various opinions about what does and does not look like suspicious activity. ... That is problematic since the opinions appear over generalized in some instances, e.g., nervousness,  the use of masking agents, and the presence of a rental vehicle. In others, they may have been based upon facts different from those at bar, e.g., windows that could not open indicating the presence of contraband. While in others, they may have simply been derived from his personal viewpoint, e.g., driving 75 mph on an Interstate with windows down.

Each indicia at bar could have significance or not. It was dependent upon the State and deputy to explain why they did. Merely offering conclusory opinions derived from an unknown data base does not instill  us with confidence about their reliability and accuracy. As stated in Ford v. State (citation omitted), "[m]ere opinions are ineffective substitutes for specific, articulable facts in a reasonable suspicion analysis." Without proof of their substantive reliability they are not enough to raise the totality of the circumstances before us to the level of reasonable suspicion.
 Grits expects prosecutors immediately to appeal this to the Court of Criminal Appeals.

Monday, October 17, 2016

Forensic snafus, depressed DAs and judges, and the risks of risk assessments

In a few weeks, this accursed presidential election will be over and, the following week in Texas, state legislators will begin prefiling bills. Until then, there's little for the policy-minded to do but hunker down until the circus leaves town and plan ahead for what's next. To that end, here are a variety of recent stories which merit Grits readers attention more, IMHO, than the latest bloviations on the presidential campaign trail.*

Ask CCA candidate why she won't use public defenders
Texas Court of Criminal Appeals candidate Mary Lou Keel stopped using the Harris County Public Defender Office because of a dispute with some of their attorneys, and the HCPD won't say what it involved, the Houston Chronicle reported. Journalists should inquire and she should say. After this most wretched primary season which saw ignorance rewarded and qualified candidates punished, Grits harbors few illusions that people cast informed votes in these races. But in theory, at least, it'd be useful for voters to know the likely next CCA judge's views on public-defender systems and indigent defense, to the extent the conflict sheds any light on them. News of the conflict emerged in light of a new state audit of Harris County indigent defense systems, a document which Grit may delve into in more detail in a future post.

Another forensics SNAFU could affect thousands of DWI cases
In Dallas, "Thousands of DWI convictions in North Texas could be jeopardized after the testimony of a state forensic scientist recently came under scrutiny." Get used to these sort of headlines. In the coming years, many forensics historically admitted into evidence by courts will either be invalidated or, even where the science is valid, found to be performed by incompetent analysts using unjustifiable methods. The temptation to treat them each as isolated incidents should be ignored. In many cases, folks are looking skeptically at long-used forensics for the first time to assess their validity, and more often than not, what they discover isn't up to snuff.

What to do with a depressed judge or DA?
Resignations from Dallas County District Attorney Susan Hawk and 5th Court of Appeals Justice David Lewis raise questions about what should happen when public officials suffer from severe depression or other serious mental illness while in office. The office-holder leaving voluntarily solves the instant problem from the perspective of formally staffing the slot, often after months or longer of putting off the inevitable. But it's a near certainty the situation will recur. There was apparently a move underway to remove Justice Lewis (whom Grits first met when he was one of the attorneys in the Dallas sheetrock/fake-drug scandal, an outrageous frame-up job around the turn of the century in which informants and DPD narcotics detectives intentionally framed illegal immigrants). I feel bad for him and Judge Hawk, but I'm glad they're stepping down. It's extraordinarily difficult to oust someone from public office in Texas for a medical condition, as it should be; even writing the words seems wrong. Some will argue that behavioral health problems are different from cancer or a heart condition because they specifically impact cognition. OTOH, plenty of Texas prosecutors and judges without diagnosed mental illnesses have suffered from poor judgment and impaired cognition - sometimes to much more deleterious effects than in either of these two instances - and nobody but voters can take them out.

Documenting a dystopian, modern-day witch hunt
The documentary "Southwest of Salem" about the San Antonio Four aired on the Discovery ID network over the weekend. See Rolling Stone's writeup, which observed that transcripts from the trial "read like a dystopian nightmare."

Debating the risks of risk assessments
This assessment at the Washington Post of the debate surrounding whether "risk assessments" generate racially discriminatory outcomes more or less sums up my view: 1) There are no perfect risk assessments because some of the risk factors reflect societal disparities and interpreting their meaning involves value judgments and tradeoffs, not static, objective analyses. However, 2) risk assessment instruments overall pretty clearly generate more consistent justice for more people and discriminate less than judges and prosecutors.  So for now - depending on the instrument - Grits generally favors them, though I'd like to see not-for-profit models used which don't involve black-box analyses which defense lawyers can't refute nor cross-examine.

Conflict of interest and prosecutorial discretion
A new article for Grits' reading list: "Rethinking prosecutors' conflicts of interest." The authors urge in particular reconsideringprosecutorial discretion, opining that "Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse."

* It's hard to imagine that, at this late date, anyone politics-and-policy-focused enough to read this blog is still an "undecided" presidential voter. And if you've already decided, reading the latest back-and-forth provides no new or useful information. If one can muster the mental discipline to ignore it, doing so frees up a lot of brain space.

Sunday, October 16, 2016

Cheapskates: Defalcation of capital attorney fee sends message court devalues indigent defense

Former Gov. Rick Perry paid his lawyers upwards of $2 million to defend him against ultimately-dismissed non-capital felony charges, but the Texas Court of Criminal Appeals thinks a trial judge was reasonable in determining $48,000 was too much to pay the second chair in a capital-murder case resulting in a life-without-parole sentence.

In yet another opinion "tinged with despair," Judge Elsa Alcala's dissent, joined by Judge Larry Meyers, aptly explains how ridiculous this stance really is, showing the lawyers performed their role at a relatively "bargain" price to the state. She suggested the court's decision should come with a sign reading, "Lawyers Look Out: Judge May Not Pay for Your Work." Indeed, that language is now formally implied in every contract an attorney signs to defend an indigent capital defendant in Texas. Because the state that once brought you a sleeping lawyer in a capital-murder trial needs more disincentives for attorneys to zealously defend their clients. (/sarcasm)

A concurrence to the majority decision by outgoing Judge Cheryl Johnson argued that the attorney hadn't jumped through the right hoops to get paid, but Alcala argued that the decision ignored the record, "places form over substance," and "abrogates our responsibility as an appellate court" by failing to hold the trial judge accountable for things the law says she "shall" do but did not.

Didn't anybody (besides Alcala and Meyers) think this will contribute to the hard-to-ignore impression that the CCA indulges an institutional motive to minimize incentives for high-quality capital defense work, and that at some future point that will come back to bite them in the behind? Talk about penny wise and pound foolish!

Paying for capital defendants to have quality legal representation on the front end can prevent years of delays down the line. After all, the famous last-minute habeas filings in capital cases are mainly necessary because so many issues were never adequately raised at trial or on appeal by underpaid and sometimes underqualified attorneys. Everyone decries the fact that capital cases are mainly litigated in the habeas phase, sometimes causing capital defendants to linger on death row for decades. But this example demonstrates why: The government isn't willing to pay for an adequate defense up front, even when they're threatening to kill the defendant, and the Texas Court of Criminal Appeals is just fine with that.


Thursday, October 13, 2016

Vast resources spent in Texas to criminalize drug addiction

The amount of resources spent in Texas criminalizing drug abuse remains vast, we're reminded by a new report from national ACLU and Human Rights Watch, which usefully honed in on drug enforcement trends and regional differences in Texas, Louisiana, Florida, and New York. In-state geographic disparities were notable in Texas: For example, 53 percent of drug arrests in Harris County are for marijuana, compared to 39 percent in Dallas County.

The report authors found that, "the majority of people convicted of drug possession in Texas are sentenced to some form of incarceration." Indeed, when it came to low level drug cases, "Particularly in Texas and Louisiana, prosecutors did more than simply pursue these cases—they often selected the highest charges available and went after people as hard as they could." In support of that contention, said the report:
In 2015, according to data we analyzed from Texas courts, nearly 16,000 people were sentenced to incarceration for drug possession at the “state jail felony” level—defined as possession of under one gram of substances containing commonly used drugs, including cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms (or between 4 ounces and 5 pounds of marijuana).

One gram, the weight of less than one-fourth a sugar packet, is enough for only a handful of doses for new users of many drugs.  Data presented here for the first time suggests that in 2015, more than 78 percent of people sentenced to incarceration for felony drug possession in Texas possessed under a gram. Possibly thousands more were prosecuted and put on probation, potentially with felony convictions. In Dallas County, the data suggests that nearly 90 percent of possession defendants sentenced to incarceration were for under a gram.
In Texas, between 2012 and 2016, approximately one of eleven people in prison had drug possession as their most serious offense; two of every three people serving time for drug charges were there for drug possession; and 116 people had received life sentences for drug possession, at least seven of which were for an amount weighing between one and four grams.
There was this commentary regarding oft-cited failures of the probation system:
Although probation is a lesser penalty, interviewees in Florida, Louisiana, and Texas told us they felt “set up to fail” on probation, due to the enormous challenges involved in satisfying probation conditions (for example, frequent meetings at distant locations that make it impossible for probationers to hold down a job, but require that they earn money to pay for travel and fees). Some defense attorneys told us that probation conditions were so onerous and unrealistic that they would counsel clients to take a short jail or prison sentence instead. A number of interviewees said if they were offered probation again, they would choose incarceration; others said they knew probation would be too hard and so chose jail time.
The Statesman account included this notable tidbit:
In Texas, where possession of even trace amounts of illegal drugs can lead to jail sentences, the report found that drug possession charges accounted for 78 percent of almost 900,000 misdemeanor and felony drug cases that were handled by state courts from September 2010 through January 2016.
Other findings included:
  • Drug possession cases accounted for more than 15 percent of all county and district court criminal dockets.
  • Almost 80 percent of Texans incarcerated for drug possession received a state jail felony, meaning they had less than a gram — about the weight of one-fourth of a sugar packet — of cocaine, heroin, methamphetamine, PCP, oxycodone and other common drugs, or between 4 ounces and 5 pounds of marijuana. A conviction for having less than a gram carries a potential jail term of six months to two years, while 1 to 4 grams can bring two to 10 years, the report said.
  • A black person in Texas is 2.4 times more likely to be arrested for drug possession than a white person, although other studies have shown a similar rate of drug use among blacks and whites.

Disparities in Austin police use of force too large to explain by crime rates

Though statistical analysis cannot prove racial animus by law enforcement, researchers emphasized, it's also true that crime rates alone cannot explain large disparities in how often Austin police use force against minorities compared to white people, according to a new study using the most detailed metrics yet available to study the issue. See coverage from the Guardian and the Austin Statesman. The Guardian yesterday reported that:
even controlling for crime rates, income and education levels, and rates of home ownership, black and Hispanic neighborhoods in [Austin] still see a slightly higher number of use of force incidents, the new analysis found. Every 1% increase in the proportion of black residents in a neighborhood led to a 2.6% increase in use of force incidents, according to the analysis.
Moreover, they reported:
In a highly segregated city such as Austin, that increase actually looks much larger when you apply it to the neighborhood level. Virtually all the neighborhoods on the city’s west side are less than 5% black, while many on the east side are closer to 60% black. Using the report’s findings, that could mean an increase in use of force of more than 140% from a typical white neighborhood to a typical black one after controlling for other variables.
Statistical analyses such as this, for a variety of reasons, cannot definitively prove intentional discrimination, though to Grits' mind these data come closer than most attempts I've seen. Continued the Statesman:
The next step is to combine data about police use of force with community surveys to get a clearer picture of how police activity affects community attitudes. However, that is expensive and will require grant funding.
The Center of Policing Equity does not take money from police departments.
"Our hope is that we help find the grant funding to do this," Acevedo said. "Just by doing the deep dive sends a message that we care about what people think, what their feelings are and what the perceptions are and what the reality are important to us."
In future years, this will come to be non-controversial. Before Texas' racial profiling data collection bill passed in 2001, for example, it was common for law enforcement to claim that racial disparities in stops and search patterns simply did not exist, responding to all allegations of differential treatment with blanket denials that could not be proven nor dis-proven. Now, we know for certain black Texans are stopped at greater rates than they populate the driver pool, and that after the stop they're more likely to be searched and arrested, frequently for outstanding traffic warrants or other low-level offenses which landed them into what amounts to a debtors-prison situation. So the debate has moved on to WHY that happens instead of whether it does.

Debates around use of force are overdue for the same transformation. The claim that high crime rates among black folks justify using force against them more often has been made so often - in the face of a complete absence of evidence either way - that it will take a while for the truth of disparate outcomes to sink in. But the ability to base the discussion on hard facts rather than supposition is an important step forward.

As this blog has maintained for years, on a variety of issues, one cannot manage what one cannot measure.

Monday, October 10, 2016

Point of Impact: Interview with Eva Ruth Moravec

Grits contributing writer Amanda Woog recently interviewed fellow Grits contributing writer Eva Ruth Moravec about her new project, Point of Impact, a multimedia investigative journalism series documenting 19 officer-involved shootings of unarmed people in Texas.  Today, the Houston Chronicle published Eva Ruth's most recent story, "Irving officials stay silent on shooting involving officers."  And another recent Point of Impact article reported on three shootings at gun ranges and ran in the Austin-American Statesman.

In the interview, Amanda and Eva touched upon different recently-launched projects documenting officer-involved shootings, including Point of Impact and Amanda's Texas Justice Initiative; the challenges in reporting these kinds of incidents; and what Eva hopes people engaging with her project will take away.

Listen to the podcast here, and check out the transcript after the jump.

Friday, October 07, 2016

Quarter of Texas police shooting deaths unreported to AG despite mandate

About a quarter of Texas police shooting deaths over the last decade - more than 200 - went unreported to the state Attorney General despite criminal penalties on the books for noncompliance, our own Amanda Woog observed in a Houston Chronicle editorial.

Woog reported that, "Scott Bowman, Howard Williams and Jordan Taylor Jung, of Texas State University, have documented more than 200 police shootings that were not reported to the AG's office, but should have been. This is around 15 percent of the total deaths in police custody that were missing, and when looking at the subset of deaths by police shooting, more than 25 percent were unreported." See their analysis.

The academics discovered these undisclosed police shootings by using the media-analysis methodology pioneered by the Guardian and Washington Post in their national compilations of police shootings. They found more than 200 which had not been reported to the Attorney General in which it would have been required under state law.

The crux of Woog's op ed suggested a change to incentivize reporting of heretofore covert police shootings where criminal penalties have failed. Here's how the article concluded:
Right now, compliance with the custodial death reporting statute is tied to a criminal penalty for failing to report, a Class B misdemeanor. But actual enforcement of the law requires that local law enforcement investigate, and local prosecutors prosecute, local law enforcement violations.

Unsurprisingly, I could not find a single prosecution under this law in its 30-plus year history.
Instead of relying on an apparently never-been-used criminal penalty that depends on police policing the police, compliance should be tied to funding and enforced by state authorities.

Withholding funding for failing to report custodial deaths is currently being discussed on the federal level. In recent years, the Bureau of Justice Statistics in the U.S. Department of Justice has been under fire for state and local law enforcement agencies' underreporting in the federal custodial-death reporting program. In response to recent proposed rule changes by the BJS, a coalition of organizations led by the ACLU and NAACP wrote a letter to Attorney General Loretta Lynch calling on the DOJ to "condition federal criminal justice grants on data collection and reporting on police-civilian encounters."

Texas should do the same. In fact, there's precedent in our state for withholding grant funding from local authorities that fail to comply with criminal justice data-reporting requirements. In 2012, when counties were not adequately updating criminal history records as required by state law, the Criminal Justice Division under Gov. Rick Perry conditioned eligibility for CJD grants on counties' 90 percent or above compliance with the reporting law. Within eight months of the CJD's announcement, 172 counties became compliant with the minimum reporting standard.

Strengthening Texas' custodial death statute by withholding funding from counties not complying with the law could be accomplished by executive action through the governor's office, or by the Legislature amending the law to explicitly condition certain grants upon reporting compliance. Texas needs new incentives that encourage law enforcement to report in-custody deaths and deter agencies from concealing them.
One wonders whether these weren't reported because there were problems at the shoots agencies didn't want to reveal, or if the culture of noncompliance and disrespect for the statute has simply reached the point where law enforcement knows their colleagues will never hold them accountable and so just do what they please.

MORE (10/9): The Houston Chronicle's Lise Olsen has a story on these unreported police shootings. The Houston Police Department (16) and the Harris County Sheriff (12) were the Texas agencies with the most unreported shooting deaths.

Thursday, October 06, 2016

Blogiversary roundup: Texas tough on sandwich theft

Today is the 12th anniversary of the first Grits for Breakfast blog post, commemorating my transition from a prior, police-reform site which dated to 1997. Thanks for reading! If you want to help celebrate, please take the opportunity to donate via PayPal; after a couple of recent blog-related reimbursements and with numerous media subscriptions direct-drawing from the account, resources are running a little low.

In the meantime, to clear my browser tabs before taking off later today to purchase some celebratory scotch of at least the same age as the blog, here are several items which merit Grits readers' attention

Texas tough on sandwich theft
Texas' three-strikes law predates California's more famous version and recently allowed a man to be sentenced to life in prison for stealing a sandwich.

DWI offenders are forgotten nonviolent prisoners
Outside of drug and property offenses, DWI recidivists are one of the largest cohorts of nonviolent prisoners in the Texas prison system. The Houston Chronicle reported on the habit of the Montgomery County DA to seek life sentences for repeat DWI offenders.

The Sheriff and the spooks
Crazy story out of Hudspeth County about Sheriff Arvin West. Just read it.

Harris jail mops up mental health clients
A story on Baylor psychiatry students working at the Harris County Jail included these data on mental-health care given to jail inmates there:
In Harris County, between 25 percent and 35 percent of the 9,400 jail inmates receives psychotropic medications, counseling or other services. Hickman told legislators last month his mental health staff made on average 24,664 contacts with patients every month over the last year.

At the same time, community services have been squeezed. After Harris County weathered massive cuts in state funding in 2003, the Harris Center shuttered more than half of its seven outpatient clinics, said Sylvia Muzquiz-Drummond, medical director of the center's mental health division.

Many Harris County residents who lost services at those facilities began turning up in the criminal justice system, with the jail seeing such an increase in inmates with mental health issues that forced the center to boost staffing at the jail from two to 15 full-time psychiatrist positions.
Reconsidering banishment
The Legislature has been unwilling to confront the question, but courts are turning against sex-offender residency restriction statutes, reports the Marshall Project's Maurice Chammah at the Texas Observer. Our pal Mary Sue Molnar, whose amazing efforts at Texas Voices for Reason and Justice have pushed this issue back into the spotlight in Texas, makes a featured appearance.

Murder rates in context
Murder rates have been in the news lately, with Ferguson-effect types overhyping recent increases and some reformers seeking to pretend the increases weren't real. I thought this item at cast the situation correctly, which is to say, based on the data, not ideologically based hype. Their conclusion: "Murder is more prevalent than it was two years ago and about as prevalent as it was seven or eight years ago, but the current decade is still safer than any other decade on record."

Wednesday, October 05, 2016

Why train drivers to tolerate aggressive police tactics when we could just end aggressive police tactics?

Grits had wondered if the proposal to educate Texas ninth graders about police interactions at yesterday's Texas Senate Criminal Justice Committee meeting would move beyond the standard "comply and complain" model taught in Texas drivers ed for decades to include more useful information on how to assert one's rights to end police interactions as quickly as possible. Seemingly not.

There are somewhere north of 60,000 law enforcement officers in Texas and more than 28 million residents. If education is going to solve the problem, pure practicality would dictate beginning with the 60k instead of the 28 million, even if you're doing it just one generation at a time as they pass through the ninth grade. But suggestions for police deescalation training were vague and nebulous, while a curriculum for ninth graders was discussed in much more concrete terms.

Sandra Bland's case was held up as an example of citizens needing better training, but I don't wholly agree. (Let's put aside for the moment that Sandra Bland grew up out of state and came to Texas to go to college, so the proposal couldn't have impacted her situation.) If you watch the video, at the moment the trooper put his hands on Ms. Bland and told her she was under arrest, she had done nothing more illegal than failure to signal a lane change and was being arrested for a Class C misdemeanor. She resisted - because the arrest was complete and utter bullshit and the trooper was a jerk - so that got her a more significant charge. But what started it all was Brian Encina getting angry because Sandra Bland wouldn't put out her cigarette, grabbing her to yank her out of the vehicle, and announcing she was under arrest for failure to signal a lane change.

If the trooper were better trained and never laid hands on Ms. Bland, OR if the Lege had changed the law to ban arrests for Class C misdemeanors (for which the max punishment is only a fine, not jail time) so he couldn't have legally arrested her, that may have prevented her eventual, tragic death. Bland's instinctual impulse to resist never arises if the trooper doesn't try to bully her and improperly assert his dominance. It's hard to see how you can educate that sort of basic human reaction away, any more than abstinence-only education in high school stops teens from having sex.

The problem is you're trying to educate people to accept being disrespected and demeaned by someone whose salary is paid from their taxes. The SA Current reported a telling exchange from the hearing which encapsulates this problem:
Shortly into this morning's Senate hearing on criminal justice, Senator José Menéndez, a San Antonio Democrat, brought up his own experience with law enforcement.

"I've gotten pulled over a couple times," he said. "And the first thing the officer asks is, 'Is this your car?' And I want to ask, 'Why, is it because it looked like I borrowed it?'"

Sen. John Whitmire, chair of the Senate Committee on Criminal Justice replied, with a chuckle: "That's what we're going to teach in the class not to say."
But exactly why should the senator avoid reacting to the officer's implication that he stole the car he was in if he thinks he's being racially profiled? I don't understand. The officer asked what the senator viewed as an insulting question. Why is it on the driver to withstand and ignore the insult? Why shouldn't it be on the officer (and by extension, those who trained her) to behave more respectfully? If the driver asks questions that imply the officer is corrupt, a wife-beater, a thief, a liar, etc., would we expect the officer to react calmly?

Here again, as with Sandra Bland: An officer instigates, the driver reacts (or at least considers it), and somehow it's the reacting driver, not the instigating officer (the only person in the interaction actually employed by the government), who this proposal seeks to hold responsible for bad outcomes. This is a basic cart-before-the-horse situation: If government can control its own employees and train them to behave more respectfully - not turning every citizen interaction into some investigative detention or petty personal power play - the state won't need to "educate" its citizens on how to successfully survive interactions with them without being killed.

Sen. Menendez's experience also brings up a point about the proposed curriculum that Grits mentioned over the weekend:
Teaching them to "comply" cannot mean "comply with questioning." Drivers must submit to short-term detention if they're pulled over but they're under no obligation to explain where they're coming from, where they're going, what they're doing, consent to a search, etc.. If the curriculum does not acknowledge those limitations on officers' ability to enforce compliance and ignores drivers' civil liberties in favor of emphasizing cops' authority, it won't solve the problem and may make it worse.
Bishop James Dixon from Houston similarly pinned blame for negative interactions on officers seeking to use traffic stops as a platform for investigating the driver on unrelated offenses for which the officer has no evidence:
Bishop James Dixon of the Community of Faith congregation in Houston told the committee about being followed by a police officer for two miles before he was pulled over and surrounded by four police cars. “I don’t think that’s happening to my white brothers and sisters,” he said.

“I feel threatened whenever the police stop me,” Dixon said. “I am an endangered species. So is my 9-year-old son.”

During traffic stops, Dixon suggested requiring officers to identify themselves and state why they pulled the driver over before asking questions. “I have been asked, ‘Is that car yours? Where are you going?’ — as opposed to, ‘Good afternoon, my name is officer so-and-so and the reason that I stopped you is,’” Dixon said.

“The tone the officer uses to ask me a question lets me know if the officer is simply trying to provoke me or if he’s trying to get information,” he said.
That's an accurate assessment - the officer is trying to provoke the driver. So the state can train millions of people to withstand provocation by government employees, or teach a few thousand of its agents to not intentionally provoke people. On its face, which do you think would do more to reduce problematic traffic stop interactions?

Beyond pragmatism, there are at least three good reasons the officer in that situation bears the lion's share of responsibility compared to the driver. 1) It's their job for which they've received extensive, detailed training while the driver is a random person chosen literally off the street. 2) The power differential - in terms of legal authority, strategic positioning and firepower - is all in the officer's favor, and power exercised arrogantly spurs resentment. And 3) The officer initiated the interaction, the driver did not ask for it and does not want it. The driver is reacting, while the officer is in control or, in cases such as Trooper Encina's, looking to establish it. But often, deescalation is more appropriate and would prevent these sort of negative outcomes. Limiting aggressive police tactics at traffic stops can reduce animus and ill will from the public. Sandra Bland couldn't make Trooper Encina NOT put his hands on her, that was his choice. (And it rightly cost him his job.)

At the hearing, Whitmire's proposal faced no opposition. But the Texas Observer quoted a spokesman for Black Lives Matter: Houston who dubbed the proposal victim blaming: “It’s an insult. It just seems to me that they are trying to satisfy the demands and needs of the police unions.” The liberal site Think Progress called it a "well-intentioned, backwards plan to improve traffic stops with police," complaining that "the proposed curriculum assumes that the people targeted during those stops are the problem— not the officers."

To be fair, at one point Chairman Whitmire did opine that, “It is not as simple as 'obey and complain' – it’s too simplistic.” Reported the  Tribune:
Officers also have to shift from an "I caught you" mentality to a protective one, Whitmire said.

"If you see young people out at night on a corner, instead of driving up like you're trying to see who's got some dope, would it not be better if you drove up and see if something you can do to help them get home safely?" he said.
But the comply-and-complain meme (Whitmire's "obey and complain" is a better description), which has been a cornerstone of how students are taught to interact with police officers in Texas drivers ed courses for decades, dominated the ledes of much of the MSM coverage from the hearing as though it were something new under the sun and not a theme countless black parents have pounded into their children's heads for generations, too often to no avail.

That's the dilemma: Compliance won't always protect you and complaining generally hasn't made a difference. Without addressing those failures, which are problems for police agencies and legislators to confront, not the public, there's not much you could tell kids in a ninth grade classroom that will fundamentally alter this dynamic.

Finally, Clay Robison of the Texas State Teachers Association made an important and largely neglected point from the perspective of educators: "To make such a lesson work, there would need to be uniformity in what students should expect from law enforcement across jurisdictions." Right now that's not the case. So again, the first thing to do if we want this education to happen is focus on police disciplinary systems and training, so students receiving the curriculum in one part of the state will know it applies when they travel to another. Without that uniformity, there's no way for TEA to develop a consistent, statewide curriculum.

Police shooting too many people is the government's problem to fix. Training youth how to exercise their rights in ways that end police encounters as quickly and safely as possible - and to demand an attorney if the officer wants to question them further - might in the long run help the problem. But just telling kids "shut up and do what you're told" won't be sufficient. In the near term, we'd get a lot more bang for the buck training officers in PERF-approved deescalation methods and empowering departments to punish bad cops.

RELATED: What should we teach ninth graders so police won't shoot them?

Tuesday, October 04, 2016

Training Day: How often do Texas police shoot each other while training?

Grits contributing writer Eva Ruth Moravec, who has launched the Point of Impact series investigating Texas police shootings of unarmed people, sent out an email today posing the question, "How often do Texas police shoot each other while training?" There were three in the first year data was collected under a new Texas law for FY 2016, including the first in her series of narratives regarding police shooting cases with unarmed victims. Here's the text of her email:
One of the 19 Point of Impact shootings took place at a gun range near Dallas, where Irving Police Department's SWAT team was training one day last year. But it was one of three training accidents involving Texas law enforcement last year.

While the other two incidents led to disciplinary action, the Irving incident - in which an unarmed training officer was injured - did not. In total, 169 people were shot by Texas law enforcement from September 2015 to September 2016, and 20 percent of those individuals were unarmed.

The story ran in the Austin American-Statesman Oct.3, and is also on the project's website. Also on's site: videos, a StoryMap so readers can follow along, and even more department policies than we started with.

I'm so grateful and excited for where this project has been and is headed. To check out the buzz Point of Impact has had so far, listen to our interview on the Texas Standard and read this Grits for Breakfast post. And, keep an eye on Grits for a forthcoming podcast about the project soon.

Sunday, October 02, 2016

What should we teach ninth graders so police won't shoot them?

What might Texas ninth graders be taught about interactions with law enforcement that could prevent police from shooting as many of them later on?

That's the question posed by Sen. John Whitmire's suggestion that they be "taught how to properly interact with police when they are stopped for traffic violations or if they are detained," as the Houston Chronicle's Mike Ward reported on Thursday.
Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said his proposed legislation would require the Texas Education Agency to develop curriculum "in law enforcement duties and interaction."

If eventually approved by the Legislature, the law would be the first of its kind in Texas.

"There is no home team or visiting team. We must all come together to develop the best strategies to improve relations and trust between law enforcement and the communities they serve," Whitmire said. "Increased training and education for both peace officers and our students will help foster positive relations and interactions."
A few paragraphs down from the "first of its kind" claim, though, we learn that "state-required driver training programs already instruct teenagers how to act when they are stopped by police for a traffic violation." So we're assuming this instruction would be somehow better or different than what's taught in driver's ed, which is essentially the cop-centric "comply and complain" model - comply with the officer's instructions at the traffic stop and complain later if your rights were violated. Wrote Ward:
"Too often police encounters are ending in a tragedy, and that's what we want to stop," Whitmire said. "If you feel an officer does you wrong, you don't take it up with them out on the street, you take it up with an administrator. That's one of the things I think we'll teach."
But there has to be more to it than that. You can't just tell kids that the police officer's life, their rights, and their most unreasonable instructions matter more than the life, rights, or most reasonable demands for respectful treatment of a detained driver, and if you don't like it, shut up and complain later. Sure, you can tell people their rights and even their lives don't matter as much as the officers' under the law. But it's more difficult to convince an individual to abnegate their own personhood in a real-life situation than it is to do so in statute or a judicial opinion.

Regardless, since teaching "comply and complain" to generations of Texas drivers ed students hasn't done the trick, what should be in this new curriculum that would make a greater difference?

Perhaps it should be sort of an institutional version of "The Talk" which many black families have with their children as they begin to come of age. Texas collects rudimentary racial profiling data at every agency which makes traffic stops, and more detailed data on after-stop activities like searches at some agencies, including DPS. Texas could make every department gather the same data DPS does and then 9th grade schoolkids could be told: If you're black (or Hispanic, etc.) in our town, you're X times as likely to be stopped by police as your white schoolmates, Y times as likely to be searched during a traffic stop, and Z times as likely to be shot and killed. If you're white, you still might be stopped, searched, or killed by police (more whites than blacks are killed by law enforcement, though the per-capita rate is lower), so they should still know this information. And it won't hurt white kids to understand that things are different for some of their classmates than for them.

People want this information about how to interact with cops in a way that protects their rights. When I was Police Accountability Project Director at ACLU of Texas during the implementation of Texas' racial profiling law, we were asked to do "Know Your Rights" trainings all over the state about how to interact with police. A lot of people think they have more rights than they do, in some ways, but also fewer than they tend to understand at specific points in the process. Let's teach them both.

Students should be taught that police can arrest them for petty offenses, like Sandra Bland's failure-to-signal-a-lane change, at the officer's discretion, even when the law envisions no jail time as punishment for the offense. (Gov. Rick Perry vetoed legislation in 2001 to limit such arrests, but Republican state Sen. Konni Burton, who is on Chairman Whitmire's Criminal Justice Committee, has vowed to carry a newer, beefed up version in 2017. So if that passed, students could be informed in the new curriculum that they cannot be arrested for Class C misdemeanors, or whatever the rule turns out to be.)

It's true the safest time to take up an officer's misbehavior is after the fact; confronting it at the time could get you tazed, beaten, or shot. But will students be taught how seldom officers are held accountable after citizen complaints, even when there's video? In Austin, for example, "Less than 5 percent of the complaints from the public resulted in officer discipline," an audit found. The Statesman's recent look at DPS showed none of the racial profiling complaints from the public were found to be justified by the agency, even though video posted by the Statesman showed drivers being treated with open disrespect. We shouldn't advise people to complain without also telling them complaints tend to be fruitless. The purpose here should be to educate students, not propagandize them.

A curriculum which taught students the legal limits of their personal rights when interacting with police might be useful, but only if it empowers students to END interactions with police as soon as possible and explains why that's always in their personal best interests when being questioned without a lawyer. Teaching them to "comply" cannot mean "comply with questioning." Drivers must submit to short-term detention if they're pulled over but they're under no obligation to explain where they're coming from, where they're going, what they're doing, consent to a search, etc.. If the curriculum does not acknowledge those limitations on officers' ability to enforce compliance and ignores drivers' civil liberties in favor of emphasizing cops' authority, it won't solve the problem and may make it worse.

There are also plenty of facts, figures, history, and basic civics they could be taught which might help provide meaningful context, perhaps dating back to the Fourth Amendment's creation in response to unreasonable searches by law enforcement under King George which helped spark the American Revolution. Students could be shown video montages of unarmed people being shot or assaulted by police - perhaps even video from Rodney King's beating - so they can understand fully that being unarmed or even submissive will not necessarily keep a cop from assaulting, shooting, or even killing you. Such a curriculum would truly inspire caution, perhaps even sufficient to make an impression strong enough to be recalled during those critical, decisive moments when a wrong move might get a kid killed.

Grits believes this more catholic approach could do more to reduce police shootings than teaching pure "compliance." Help the kids understand their own self interests, how and why they (in some cases literally) have skin in the game. People will never believe they have no rights and are powerless. Told so, teenagers inevitably will seek to take power themselves in unpredictable and unproductive ways. ("Freedom's just another word for nothing left to lose," wrote the bard.)

Education that empowers students to fully exercise their rights to limit police intrusion into their lives might reduce negative interactions by giving ninth graders tools to peacefully get away from those cops who might hurt or even kill them if they mouth off or reach into their pockets. However, such proposals mustn't divert legislative attention away from systemic changes also needed to deescalate the unnecessary aggression some police officers bring to interactions with the public. The police are the agents of the state, after all. Those ninth graders are its future rulers.